Benjamin Feld v. Borkowski

Citation790 N.W.2d 72
Decision Date22 October 2010
Docket NumberNo. 07-1333.,07-1333.
PartiesBenjamin FELD, Larry Feld, and Judith Feld, Appellants, v. Luke BORKOWSKI, Appellee.
CourtUnited States State Supreme Court of Iowa


Gregory J. Siemann of Green, Siemann & Greteman, P.L.C., Carroll, and Dan Connell of Dan Connell, P.C., Storm Lake, for appellants.

Joel T.S. Greer of Cartwright, Druker & Ryden, Marshalltown, for appellee.

CADY, Justice.

This appeal arises from an action by a participant in a softball practice against a coparticipant for head injuries suffered from a flying bat when the defendant released his bat while hitting a pitched ball. We primarily consider the application of the contact-sports exception and the sufficiency of evidence to support a finding of recklessness. The district court granted summary judgment for the defendant. We transferred the case to the court of appeals, who affirmed the decision of the district court. We granted further review.

On our review, we vacate the decision of the court of appeals, reverse the decision of the district court, and remand for trial.

I. Background Facts and Prior Proceedings.

Benjamin Feld and Luke Borkowski were teammates on an intramural slow-pitch sixteen-inch softball team, composed of male high school students, during the summer of 2005. Feld and Borkowski were experienced players, having played various levels of the game throughout their childhoods. The team assembled to play games against other teams and to practice among themselves. Practice primarily consisted of batting practice, which allowed each player the opportunity to swing at approximately twenty pitches before the next player rotated into the batter's position. The team members who were not batting or pitching played various field positions, except catcher, and attempted to catch or retrieve the balls.

During a batting practice on June 2, 2005, Feld was playing first base while Borkowski batted. Home plate and first base were sixty feet apart, the customary arrangement in slow-pitch softball. Borkowski, a right-handed hitter, swung at pitch after pitch using an aluminum bat. He was known as a strong hitter. After about a dozen pitches, Borkowski hit a high fly ball into foul territory on the third base side of the field. A split second after the bat made contact with the ball, it left Borkowski's hands. Most of the team watched the fly ball sail over the head of the third baseman as the bat, almost simultaneously, flew directly down the first baseline, in a horizontal helicopter motion, toward Feld. Borkowski yelled Feld's nickname in an effort to warn him of the flying bat. The warning was ineffective, and the bat struck Feld in the forehead. Feld suffered a severe injury to his left eye.

Feld and his parents filed a negligence action against Borkowski. The lawsuit sought damages for medical expenses and other associated damages. Borkowski denied the claims of negligence in his answer to the petition and asserted assumption of the risk as an affirmative defense. He also claimed softball was a contact sport, and no liability could be imposed because his conduct was not reckless. Following discovery, Borkowski moved for summary judgment on the grounds liability was limited under the contact-sports exception and the facts of the incident failed to generate a jury question that his conduct was reckless.

In resistance to the motion for summary judgment, the Felds first argued that softball is not a contact sport, as a matter of law, and therefore did not qualify for the exception to the rule of negligence. In the alternative, the Felds claimed Borkowski's actions in releasing the bat constituted reckless conduct. In support of this argument, the Felds presented expert testimony from Ed Servais, head baseball coach at Creighton University. Servais is an experienced college coach and a former baseball player. He testified he had never seen a right-handed batter hit a ball left of third base and lose control of a bat by releasing it in the direction of first base. Further, Servais testified the only way a right-handed batter could hit a first baseman with a bat in such a manner is if the batter “followed through and rotated around after striking the foul ball and deliberately threw the bat or let go of the bat in such a way that it was flung with considerable force through the air towards the first base position.” Thus, the Felds claimed, even if the contact-sports exception to negligence applied, an issue of material fact existed as to whether Borkowski acted recklessly or intentionally in losing control of his bat.

The parties disputed the manner in which the bat left Borkowski's hands after he hit the pitch. Borkowski maintained the bat slipped from his sweaty hands on the hot June day, he did not rotate his body completely around before releasing the bat, and he did not intentionally throw the bat towards first base. Members of the team, including Borkowski, referred to the incident as “a freak accident.”

Following a hearing, the district court granted Borkowski's motion for summary judgment. The court found softball qualified as a contact sport because it is an “athletic activit[y] which involve[s] the general risk of physical injury to the participants,” and liability could only be based on reckless or intentional conduct. The court concluded Borkowski's actions were not outside the normal course of playing softball because any misconduct would have occurred while swinging at a pitch during softball practice. Although the court recognized Feld may not have accepted the risk of being struck by a bat at first base, it concluded the risks were not specific to the type of injury he received, but instead included all inherent dangers in the normal course of playing softball. The district court also found the contact-sports exception barred the claim against Borkowski because the Felds failed to allege in their petition that Borkowski's conduct was reckless or deliberate.

The Felds filed an appeal from the district court's order granting summary judgment. They claimed the district court erred in finding softball to be a contact sport. Additionally, they claimed the summary judgment facts generated a jury question on whether the conduct of Borkowski was reckless. Finally, they claimed the contact-sports exception was inapplicable to the particular circumstances of this case because those circumstances showed Feld did not accept the risk of the particular injury he sustained. In the end, the Felds believed the case should be tried under a negligence standard, yet based solely on the argument that softball was not a contact sport.

We transferred the case to the court of appeals. The court of appeals affirmed the district court, concluding physical contact is generally inherent in the game of softball and there was no conclusive evidence of recklessness sufficient to present an issue of material fact for a fact finder. The Felds sought, and we granted, further review.

II. Standard of Review.

We review a district court's ruling on a motion for summary judgment for correction of errors at law. Sweeney v. City of Bettendorf, 762 N.W.2d 873, 877 (Iowa 2009). Summary judgment is appropriate when the moving party proves no genuine issue of material fact exists on the record. Berte v. Bode, 692 N.W.2d 368, 370 (Iowa 2005). If reasonable minds can differ on how a material fact issue should be resolved, summary judgment should not be granted. Hills Bank & Trust Co. v. Converse, 772 N.W.2d 764, 771 (Iowa 2009). We make every legitimate inference that can be reasonably deduced from the evidence in favor of the nonmoving party. Id.

III. Analysis.

A. Contact-Sports Exception. As a general rule, our law recognizes that every person owes a duty to exercise reasonable care to avoid causing injuries to others. Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009); Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7(a), at 77 (2010) [hereinafter Restatement (Third) ]. A breach of this duty will subject the actor to liability if the injury caused by the actor's conduct resulted from the risks that made the actor's conduct negligent. Restatement (Third) § 6, at 67; Thompson, 774 N.W.2d at 839. In most all cases involving physical harm, we have adopted the view that a duty of reasonable care exists, and it is for the fact finder to consider the specific facts and circumstances to determine if the actor breached the duty. Thompson, 774 N.W.2d at 834-35.

While the duty to exercise reasonable care accompanies each individual in most all activities of life, some activities or circumstances have been excepted from the reasonable-care duty in favor of the imposition of a less stringent duty of care for participants in the activity to protect others from injury. See id. (recognizing occasions when countervailing principles and policies justify displacement or modification of the general duty to exercise reasonable care). One such activity that has been identified as an exception is contact sports. Prior to our decision in Thompson to follow the analytical framework of the Restatement (Third) of Torts for claims of negligence involving physical harm, we followed other states in excepting participants in contact sports from constraining their actions under the conventional duty to act as a reasonable person. See Leonard ex rel. Meyer v. Behrens, 601 N.W.2d 76, 81 (Iowa 1999). 1 In finding the game of paintball to be a contact sport in Leonard, we imposed a duty for participants in the sport to merely refrain from reckless or intentional conduct. Id. at 81 (We therefore hold that paintball is a contact sport for which a participant's liability is determined under a recklessness standard.”); see also Pfister v. Shusta, 167 Ill.2d 417, 212 Ill.Dec. 668, 657 N.E.2d 1013, 1013 (1995) (holding contact-sports exception imposes “the duty to refrain from willful and wanton or intentional misconduct”); Restatement (Third) § 7 cmt. a, at 78 (recogniz...

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    ...issues or unnecessarily overturn existing law sua sponte when the parties have not advocated for such a change." Feld v. Borkowski , 790 N.W.2d 72, 78 n.4 (Iowa 2010).Nor do we address arguments raised for the first time on appeal, see State v. Derby , 800 N.W.2d 52, 60 (Iowa 2011), but tha......
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